Tuesday, July 28, 2009
This is Justice?!
"When Rudy Giulani was a federal prosecutor in New York 20 years ago, his staff members used to play a game in which they would pick a high-profile and popular person like Mother Teresa and figure what federal crime they could pin on her or him. No one could escape and in the end, no person that they named was able to slide away without having committed at least one crime for which a stretch in prison was in order. ... Most Americans have never seen a federal court, much less have found themselves in the federal dock, and they are not familar with how the system works. Indeed, when they read of another federal guilty plea or see a federal conviction in the news, they usually assume that the person was guilty of something, otherwise, he or she would not have been charged in the first place. ... Thus, it was that on April Fool's Day earlier this year, a federal jury in Charlotte, North Carolina , convicted real estate attorney Victoria Sprouse of a number of charges related to alleged mortgage fraud. ... Not surprisngly, the TV and print journalists got it wrong. ... The federal courts have become an American version of the 'Bread and Circuses' routine that once kept the Romans happy as the government around them became increasingly tyrannical and arbitary. ... However, one asks, how was she convicted? ... The key to understand this case is not necessarily knowing the testimony that backed the prosecution; effectively rigged this trial. ... The prosecution's strategy was obvious. If Sprouse could be denied adequate counsel, as $25K is not going to buy anything more than an attorney who wants to plead out right away, then an conviction was as good as done. ... Most court-appointed attorneys plead out their clients, bill hourly, and pocket the money. The key is cutting deals with prosecutors and letting the court know that the defense is not going to be a problem and will 'play ball' with the prosecution. ... Harvey Silverglate, one of the country's finest civil libertarian attorneys, has noted in his forthcoming book, Three Felonies a Day, that much of current federal criminal law much more closely mirrors the law of the former Soviet Union than it does anything we have inherited from Great Britain. Indeed, one wonders why [Matthew] Martens and Chertoff don't have busts on their desks of Stalin's secret police head, Laverty Beria, who famously declared: 'Show me the man, and I will find you the crime'," original italics, my emphasis, William Anderson (WA) at Lew Rockwell, 7 July 2009, link: http://www.lewrockwell.com/anderson/anderson254.html.
William Rhenquist (WR), my favorite Supreme of the last 30 years, often decried criminal law's increasing federalization. WR reviewed the statutes and concluded he was guilty of some felonies! Our Chief Justice? Yes! WA's point about criminal defense attorneys is well taken. Once paid, their incentive is to plead a client out. Suppose an attorney charges a client $100,000 to represent him in a white collar criminal case, not that much today. At $300 an hour, that's 333 hours to trial. Suppose the attorney can plead the client out in 50 hours, that's $2,000 an hour. Where are the attorneys incentives? Further, suppose the federal prosecutor wants to go into criminal law. What will he do? Knowingly overcharge cases to induce plea bargains, so when he is on the other side of the table, he gets his. As Cardinal Richelieu, 1585-1642, said, "If one would give me six lines written by the hand of the most honest man, I would find something in them to have him hanged". I would have chosen Andrey Vishinsky instead of Beria, but WA's point is made. Why indict nobodys like Sprouse? To divert public attention from Wall Street, i.e., "look at her. She did it"! An interesting article on "contingency" fee economics is: 22 Stanford Law Review 1125, "An Economic Analysis of the Contingent Fee in Personal-Injury Litigation," Schwartz and Mitchell, (1970). Despite defense bar claims, these fees do not encourage "excessive litigation". At least in my view. Similar principles apply to criminal defense attorneys.